[Community-Discuss] Constitution - Suggestion for Improvements

Mon Jun 13 01:38:35 UTC 2016

Mark

Thank you for this and the backgrounder.

I concur with your thoughts and general direction of your post to improve governance and remove certain ambiguities.

The one thing I'd add is to specifically and without any ambiguity refer certain matters to  the AGM or Special AGM.

Ali Hussein
Principal
Hussein & Associates
+254 0713 601113 

Twitter: @AliHKassim
Skype: abu-jomo
LinkedIn: http://ke.linkedin.com/in/alihkassim

"Discovery consists in seeing what everyone else has seen and thinking what no one else has thought".  ~ Albert Szent-Györgyi

Sent from my iPad

> On 12 Jun 2016, at 4:40 PM, Mark Elkins <mje at posix.co.za> wrote:
> 
> To get the ball rolling, I have looked over the "Suggestions for
> Improvements" and have provided my thoughts.
> 
> Some Background: I was involved before AFRINIC was created. To date
> myself, I believe I first met Nii Quaynor at an I-Net conference in San
> Jose, 22-25 June 1999, where the issue of an African RIR was discussed.
> I have since then supported first the idea of an African RIR and since
> its creation, AFRINIC itself. My name can be found in AFRINIC's founding
> documents of support. I attended both pre-AFRINIC and some of the early
> AFRINIC meetings.
> I have physically attended every AFRINIC meeting since Maputo and had
> the privilege of being an AFRINIC Board Member for six of those years. I
> am or have been on a number of other Boards as well and am a member of
> the Institute of Directors in Southern Africa (IoDSA).
> 
> 
> 
> 1. Lack of clarity on whether or not Associate Members may vote: The
> Bylaws section 7.2(i) gives Members (presumably including Associate
> Members) the power to elect Directors; 7.4 states that Associate Members
> are observers at meetings (which may be interpreted to remove other
> rights); 7.5 lists a few rights of Associate Members (which may be
> interpreted to remove other rights); 7.6 gives certain rights to
> Registered Members and Resource Members (clearly excluding Associate
> Members) and these rights include the right to vote on certain special
> and ordinary resolutions; 13.7(i) states that Directors are elected
> by Resource Members and Registered Members. It is clear that the rights
> in 7.6 are not granted to Associate Members, but there is a conflict
> between 7.2(i) and 13.7(i) on whether or not Associate Members may vote
> in elections for Directors. This conflict must be resolved one way or
> another.
> We need to decide whether or not Associate Members should vote, and
> modify the Bylaws to give effect to that decision.
> 
> 
> I was involved in some of the rewriting of the Bylaws although not
> listed as one of the "Bylaw review committee". We knew that the process
> would be imperfect and that further changes would be necessary to fix
> inconsistencies. We also introduced (in an imperfect way) the concept of
> an Associate Members. This was both to include "Individual Membership"
> (I believe that Alan Barrett, Randy Bush and I were all Individual
> Members - and held at that time the right to Vote) and to provide a
> place for interested organisations such as Regulators who had no need of
> numbering resources. This is why there is a multiple fee structure for
> Associated Members. However, there was a fear that this could be used
> for "Board Capture" in that it would be possible to quickly create a
> number of Associate members in order to Vote in a particular way.
> Talking to Adiel, he felt that one way to overcome this problem was to
> delay an Associate Members right to exercise their Vote for the first year.
> There are (were) currently only three Associate members and I am one.
> Out of the large numbers of Resource members - there would be no harm in
> allowing Associative members to vote. There may otherwise be no value in
> even having this membership category.
> 
> I thus propose that the ByLaws be updated/corrected to reflect that
> Associate Members can Vote in General Elections, but only after one
> calendar year of Membership.
> 
>                                -oOo-
> 
> 2. Interchangeable use of the terms “Bylaw” or “Bylaws” and
> “Constitution”: The Mauritian Companies Act refers to a “Constitution”
> of a company, but AFRINIC sometimes refers to the document as the Bylaws
> and sometimes as the Constitution. Suggest adding a clause 1.3 to 
> clarify that this document may be referred to by the term “Bylaws” or
> “Constitution”, and is intended to serve the function of the
> Constitution in terms of the Companies Act of Mauritius.
> 
> I agree with Alan's suggestion that both terms are currently (possibly
> incorrectly)  used interchangeably and a clause could be added to
> reflect this.
> 
> My thoughts:
>    Constitution ==> "Big" vague stuff
>    Bylaws ==> "Detailed" day-to-day stuff
> 
> Of course, the opening words in the Bylaw booklet includes:
> 
> AfriNIC Bylaws
> 
> 1 INTERPRETATION
> 
> 1.1  In this Constitution,
> 
> -and further below-
> 
> Constitution: This constitution, as amended from time to time in
> accordance with the Act.
> 
> 
> I'm still a bit confused between the two - which seem to be one at AFRINIC.
> 
>                                -oOo-
> 
> 3. Clarification that all Registered Members in terms of Bylaws 6.3, and
> only such Registered Members, must be registered in terms of the
> Companies Act as members of the company.
> 
> I Agree.
> 
>                                -oOo-
> 
> 4. Term limits: Consider adding a term limit for elected Board members.
> We need to decide whether or not to add a limit, and what the limit
> should be.
> 
> We used to have a Term Limit (of two years). It was removed in the last
> re-write. This allows the Board to potentially have and keep
> institutional memory (help not make the same mistakes again). This seems
> to work just fine in at least the RIPE region - which we in our systems
> probably resemble the most.
> Membership can I believe adequately decide when a person should no
> longer stand by not voting for them any more.
> 
>                                -oOo-
> 
> 5. Independence of Directors: Consider adding a limit to the number of
> Directors who may work for the same organisation. We need to decide
> whether or not to add a limit, and what the limit should be.
> 
> I believe we should add such a limit and I would propose that the limit
> should be Two (2). Two directors out of nine can not surly be considered
> as capture.
> 
>                                -oOo-
> 
> 6. Regional representation: Consider modifying 13.5 to state that
> Directors must act in the interests of AFRINIC as a whole, regardless
> of their regional affiliation.
> 
> Neither should they represent their Company or any other institution or
> organisation.
> I agree.
> 
>                                -oOo-
> 
> 7. Conflict of interest: Consider adding a requirement for Directors to
> disclose any conflict of interest, and to recluse themselves from
> voting on any matter where they have a conflict of interest.
> 
> This is Standard Practise in many Boards, we should follow the same route.
> I agree.
> 
>                                -oOo-
> 
> 8. Separation of powers: Consider adding a requirement that 
> no more than one key position (Board Chair, Vice Chair, Chief Executive
> Officer, Chief Financial Officer) may be occupied by the same person.
> 
> I'm having difficulty seeing where this would occur in the above example
> but the concept makes for good governance practise.
> I agree.
> 
>                                -oOo-
> 
> 9. Replacement of Directors: The bylaws sections 13.1, 13.8, 13.10, and
> 13.14 give different methods of replacing Directors for different
> reasons. Consider harmonising this.
> 
> I agree.
> 
>                                -oOo-
> 
> 10. Board approval of nominations: The Board can approve or disapprove
> nominations for Board elections in terms of the Bylaws section 12.14(i).
> Consider requiring a super-majority of two thirds of the Board to
> disapprove any nomination.
> 
> I agree.
> 
>                                -oOo-
> 
> 11. Modification to the Bylaws or Constitution: The Bylaws say how the
> AFRINIC Members may change the Bylaws, but the Companies Act say that
> the Registered Members can change it. Consider requiring that the
> Bylaws/Constitution may be changed only after a Special Resolution by
> all AFRINIC Members in terms of Bylaws 7.6(vi) , so that the Registered
> Members (the same nine people as the Directors) cannot act without
> broader approval.
> 
> I agree
> 
>                                -oOo-
> 
> 12. Policies introduced by the Board: In terms of the Bylaws section
> 11.4, the Board may adopt policy changes that did not go through the
> normal PDP. Consider giving the community the right to reject such
> policy changes introduced by the Board.
> 
> I agree
> 
> -- 
> Mark James ELKINS  -  Posix Systems - (South) Africa
> mje at posix.co.za       Tel: +27.128070590  Cell: +27.826010496
> For fast, reliable, low cost Internet in ZA: https://ftth.posix.co.za
> 
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <https://lists.afrinic.net/pipermail/community-discuss/attachments/20160613/a01d3fcf/attachment.html>